Harmal vs Special/Addl. District Judge

Palok Basu. J.

The question involved in this writ petition is whether the bar on transfer of laud imposed by Section 157-A of the UP ZA and LR Act would enable the judgment debtor to resist delivery of possession of the disputed land in execution processings arising out of a decree for specific performance of contract of repurchase.

Harmal, the Petitioner, is the purchaser of the disputed land from the original tenure- holder Nihala for a sum of Rs. 8,800/- with a right of repurchase as conveyed through registered sale deed dated 18-1-1968. Nihala transferred the right of repurchase to Respondent No. 3 Rashid on 21-7-73 who filed suit No. 31 of 1973 for specific performance of contract of resale which was decreed by the trial Court on 8-2-1974, confirmed even in Second Appeal by this Court. Execution Case No. 12 of 1990 commenced on the application by Rashid moved on 21-7-1990 Draft-sale deed was prepared which was duly executed and registered in the office of sub-Registrar at the behest of the Executing Court. Application moved by Harmal purporting to be "objection" as envisaged by Order 21 Rule 43 CPC was dismissed. Rashid made an application for delivery of possession through Court. Now, an application was filed by Harmal for recalling of order directing registration of sale on several grounds, one of which was that because of the bar on transfers by a scheduled-caste land-holder created by Section 157-A, UP ZA and LR Act, the Court could not have executed and got registered the sale deed. The executing Court rejected the said application of Harmal and allowed the application for delivery of possession by his order dated 21-10-1991 and permitted him to take steps within twenty days. Appeal by Harmal against this order dated 21-10--1991 having been dismissed on 16-7-1992 he has filed this writ petition under Article 226 of Constitution of India.

The Courts below have taken the view that Section 157-A of the UP ZA and LR Act would not be attracted to a sale by Court and, therefore, have ordered proceedings for delivery of possession to Rashid They have relied upon the decision of a learned single Judge in Ram Saran v. 1st A.D.J. Rampur 1981 ALJ 794. Sri. Siddheshwari Prasad, senior Advocate, has relied upon the Division Bench decision of our Court Rai Indra Narayan v. Mohd. Ismail AIR 1939 All. 678 , and argued that the Courts below have wrongly followed the decision in the case of Ram Saran (supra) as it was a case of "auction-sale" in execution of a money decree and the view of the learned sandngle Judge was contrary to the Division Bench decision in Rai lndra Narayan''s case (supra). Ho also cited Mangat Lal Vs. Ghasi Khan and Others, for the proposition that by merely passing of decree of specific performance, no title is transferred and if the transfer is prohibited by law, the execution of such a decree can be resisted by the judgment-debtor. In this connection the further argument was that though Section 157-A was added and made applicable on 3-6-1981, it should be held to operate retrospectively and, therefore, the decree passed in the instant case was a nullity being in the teeth of the said prohibition, hence not executable. Sri. Chandra Shekhar Sharma, learned advocate for Rashid has disputed the correctness of each and every argument and has further relied upon some decisions. He has canvassed that the orders of the Courts below are legally sound and, therefore this writ petition be dismissed.

It was strange that the learned Counsel for the Petitioner placed reliance upon an authority which has ceased to be a good law long ago. In Lala Nawal Kishore Vs. Municipal Board, a Full Bench of our Court has specifically overruled the decision in Rai Indra Narayan (supra) and held that the expression "transfer for consideration" would include auction purchase in Court sate.

It must be held that the expression "transfer for consideration" in Section 100 of the Transfer of Property Act has been used in a wider sense and would include a transfer by act of parties as also by or in execution of a decree and, therefore, should be interpreted to include an auction-purchase in Court sale. Therefore, Section 100. Transfer of Property Act is not excluded from the operation of saving Clause (d) of Section 2 of Transfer of Property Act. This interpretation stands fully fortified by the Supreme Court decision in Smt. Laxmi Devi Vs. Sethani Mukand Kanwar and Others, . Thus the view of the learned single Judge in Ram Saran v. 1st A.D.J. Rampur 1981 ALJ 794, relied upon by the Courts below, it is submitted with respect, lays down the correct law. It thus follows that the bar imposed by Section 157-A of UP ZA and LR Act cannot be invoked by the judgment-debtor by saying that sale by the Court in execution of the decree of specific performance of contract is not volutary sale by act of parties.

The other argument advanced is that Section 157-A of the UP ZA and LR Act has retrospective effect and it should be held that the decree is not executable and since possession of the diputed property has admittedly not been delivered, It should be held that the executing Court should have recalled his order directing registration of the sale-deed in the office of the sub-Registrar. In this connection, the learned Counsel for the Petitioner placed reliance on the opinion as expressed in jagdish Swarup''s famous, treatise "Judicial Interpretation".

In fact, for several reasons, the said argument does not arise for consideration in the instant case Firstly, as noted above, the second appeal was dismissed by this Court on 29-11-83 which would be about two years after the new Section 157-A was added on 3-6-81. The passing of the decree itself was not challenged by invoking the said bar in the second appeal. The said objection was also not raised in execution proceedings. It is only when Rashid. the decree-holder, made application for delivery of passed on that Harmal, the judgment-debtor made the application for recalling the order of registration of sale deed by the executing Court. This is not permissible Secondly, the agreement of repurchase is dated 18-1 1968 nearly a dozen years after which the new bar to sale by scheduled-caste land-holder was brought about. The passing of the decree on 8-2-74 by the trial Court for specific performance relate back to the said contract of repurchase dated 18-1-1968 when there was absolutely no bar on Harmal from entering into the said contract. Thirdly, Harma himself is a purchaser from the erstwhile owner of the land. He is not the original tiller of the soil. The argument that Section 157-A being a social legislation, its benefit should be extended to the tiller of the soil is not available to Harmal. Therefore, in view of this discussion the question whether Section 157-A, UP ZA and LR Act should have retrospective operation or not is only of academic interest and does not require determination

No other point was argued nor any other authority was cited. The learned Counsel for the Petitioner rightly confined his arguments to the only point discussed above as no other point is involved It may be noted that this writ petition was opposed and parties exchanged affidavits at the admission stage, hence it is being finally disposed of at the admission stage.

The result, therefore, is that this writ petition fails and is dismissed with costs. The stay Order dated 6-8-1992 is vacated and the execution proceedings stand revived as they were on the said date.